Clarifying duty to disclose

The Supreme Court of Canada has ruled it is not always necessary for a person with HIV to disclose the fact to a sex partner, but sex in the absence of that disclosure and without the use of a condom is almost certainly a crime. Manitoba's courts have helped refine this rule of law, which strikes a balance between realistic risk and the culpability of HIV-infected people.

The Supreme Court's unanimous decision Friday considered the case of Clato Mabior, a former Manitoba resident with HIV, who did not tell the nine women he had sex with between 2004 and 2005 about his condition. None of them contracted HIV. Mabior was initially convicted at trial of six charges and acquitted on three because the judge found his viral count was so low that, with condom use, he did not pose a real risk to the women.

A Court of Appeal subsequently overturned four of the six convictions against Mabior, ruling that he did not have to use a condom because his viral load was low and that alone negated significant risk of infection.

The decisions in Manitoba, combined with varying rulings across Canada, led to confusion on the understanding of the law as it relates to the responsibility of a person infected with HIV to disclose his or her condition to sex partners.

In 1998, the Supreme Court ruled that HIV-infected persons had the duty to disclose the condition to sex partners who faced a significant risk of serious bodily harm. HIV was and remains a serious, life-altering and incurable disease.

But with improvement in treatment, the chances of infecting a sex partner have changed over the years. Antiretrovirals can reduce viral loads to low or undetectable, which greatly reduces transmissibility and allows HIV-positive people to live out their lives to die of diseases of old age.

The new realities of HIV's risk and the varying court rulings triggered demands from both the legal and HIV-advocacy communities for clarity from the Supreme Court on what now constitutes "significant risk."

On Friday, the court refused to provide a number, a specific measure of viral load below which sex partners are not at significant risk. It noted that studies indicate the chances of an HIV-positive man transmitting the virus to a partner is between 1 in 384 to 1 in 2000. But HIV does not pass through latex condoms that are used properly, reducing the odds by 80 per cent, the court noted.

The Supreme Court said a low viral load, even one that was undetectable, could not alone be said to reduce risk to non-significance. The fact that current technology can't detect the virus below a certain level doesn't mean there is no risk. The court noted technology may be improved over time and opinion on low or very low risk may also change.

That is why it ruled that only with use of a condom can the responsibility of an HIV-positive person to disclose be lifted to avoid criminal conviction. In this, the court decided the Manitoba Court of Appeal erred in ruling significant risk was negated either through the use of condoms or low viral load, and reinstated convictions in three cases where Mabior had sex without using a condom while his viral load was low.

The ruling did not fully satisfy either the activists or the Crown attorneys, who argued the responsibility to disclose was always present. Advocates in health care professions and lobby groups wanted broader protection for HIV-positive persons and asserted as reliable the position of a Swiss federal commission that undetectable viral loads meant an HIV-positive person was not infectious.

The Supreme Court wisely rejected that hard position. Its ruling allows for the redefinition of "significant risk" as medical science and therapy, which has bested a once-fatal diagnosis, improve. That is the essence of judicious exercise of law, and it is the most that Canadians could ask.

Republished from the Winnipeg Free Press print edition October 6, 2012 A14